Hirshfield v. Schwartz

Decision Date15 August 2001
Docket NumberNo. B138714.,B138714.
Citation110 Cal.Rptr.2d 861,91 Cal.App.4th 749
CourtCalifornia Court of Appeals Court of Appeals
PartiesElla S. HIRSHFIELD et al., Plaintiffs and Appellants, v. S. Andrew SCHWARTZ et al., Defendants and Respondents.

Greines, Martin, Stein & Richland LLP, and Marc J. Poster and Barbara S. Perry, Beverly Hills, for Plaintiffs and Appellants.

Hanger, Levine & Steinberg, and Marc S. Shapiro, Woodland Hills, and Helen M. Kim, for Defendants and Respondents.


In this quiet title action, plaintiffs appeal from the trial court's refusal to grant an injunction compelling the removal of certain encroachments by defendants on plaintiffs' residential property. The court granted the defendants an interest in plaintiffs' land in order to protect defendants' use of the disputed areas. The court labeled that interest "an easement." However, the court recognized that it granted defendants the exclusive right to use the areas in dispute. At issue are: (1) whether the trial court applied the correct test in deciding to deny the injunction; and (2) whether recent appellate decisions holding that a prescriptive easement for exclusive use may not be awarded in residential boundary disputes apply to an interest, labeled "an easement," which was created in equity to protect an encroacher's use of another's land.

We hold that the relative hardship doctrine of Christensen v. Tucker (1952) 114 Cal.App.2d 554, 250 P.2d 660 (Christensen), states the proper test when determining whether to grant an injunction ordering removal of encroachments from another's land.1 We confirm that when the trial court properly denies such an injunction, it has the power in equity to grant the encroacher affirmative relief by fashioning an interest to protect the encroacher's use of the disputed land. We also hold that the protective interest at issue here was created in equity and was not a prescriptive easement. As such, decisions which bar the creation of exclusive prescriptive easements do not apply. Instead, we review the judgment to determine whether the court abused its discretion in fashioning the protective interest that it called an easement. We conclude that the court did not abuse its discretion, and affirm the judgement.


In this quiet title action, plaintiffs and appellants Ella S. Hirshfield and Ruth C Hirshfield appeal from the judgment entered for defendants and respondents S. Andrew Schwartz and Amy T. Schwartz.3 The Hirshfields are elderly sisters who have lived together in their Bel-Air home since 1940. The Schwartzes are husband and wife who bought the home next door to the Hirshfields in 1979. The Hirshfields' house sits on a lot nearly three-fourths of an acre in size. The Schwartzes' lot is more than 40,000 square feet.4 When the Hirshfields moved into their home, the property line between their lot and the lot later bought by the Schwartzes was not clearly marked. Sometime during the 1950s, the Schwartzes' predecessor in interest built a swimming pool in the backyard and a chain link fence running from the street to a point about halfway down the properties. Thereafter the Hirshfields planted a row of eugenia trees by the fence for privacy.

Both the Schwartzes and Hirshfields assumed that the chain link fence marked their property line. Between 1979 and 1996, the Schwartzes made several improvements to their backyard. They extended the chain link fence down the presumed property line, built waterfalls, a koi pond and stone deck, and added a putting green and a sand trap. After a car careened through their front yard, the Schwartzes built a block wall to keep their children safe while playing. The wall was constructed to be exceptionally strong, using concrete and the largest "rebar" available.5

Sometime in the mid- to late 1980s, the Hirshfields met Douglas Himmelfarb, an avid horticulturist. The three became close friends and, by 1991 the Hirshfields designated Himmelfarb as their heir. He moved into their home sometime after the 1994 Northridge Earthquake. For many years, the Hirshfields had maintained a garden. Thanks to Himmelfarb's efforts, their backyard has become a botanical showplace and is home to a wide variety of exotic plants and trees. For the past 10 years, these gardens have been the Hirshfields' main source of pleasure.

In January 1997, Himmelfarb commissioned a survey of the Hirshfields' boundary with the Schwartzes' lot. The survey revealed that two sections of land used by the Schwartzes (parcels 1 and 3) were in fact on the Hirshfields' property. One section of land used by the Hirshfields (parcel 2) in fact belonged to the Schwartzes. Parcel 1 is a 32.5 square-foot triangle of land near the front of the Schwartzes' property. The Schwartzes' block wall encroaches on it. The area is steeply sloped and used mostly for setback and landscaping. Parcel 3 is a 217 square-foot triangle of land near the bottom of the Schwartzes' property. It is mostly level, with a slight upslope. Certain of the Schwartzes' improvements encroach upon this parcel: a small portion of the sand trap; extensive underground water and electrical lines that run along the chain link fence; and several motors that run the waterfalls and the swimming pool recirculation, including a large motor installed underground in a concrete and iron enclosure. Parcel 2 is a 47-square-foot pyramid-shaped area. It is steeply sloped and is used by the Hirshfields for setback and landscaping.

In September 1997, the Hirshfields sued the Schwartzes. Their complaint included causes of action to quiet title, for declaratory relief and for trespass based on the Schwartzes' encroachments on parcels 1 and 3.6 The Schwartzes' answer denied the claims and raised various affirmative defenses, including laches and the existence of an easement by prescription "or otherwise."7

A bench trial was held May 17-20, 1999. Ruth Hirshfield and Himmelfarb testified at trial that the Hirshfields needed access to parcel 1 in order to build a circular driveway. As to parcel 3, they planned to build a greenhouse for exotic plants.

Himmelfarb admitted that the circular driveway could be built without removing the block wall on parcel 1. However, removing a three-foot section of the wall would improve visibility from the proposed driveway. Ruth Hirshfield testified that even before learning she and her sister owned parcels 1 and 3, she had planned to build a greenhouse. However, she had not investigated whether a permit was required, and how large the setback area had to be. She did not know how close to the property line she planned to build, how large a greenhouse she wanted, or whether a flat piece of ground was required in order to build. Her belief in the suitability of parcel 3 was based on Himmelfarb's recommendation. Himmelfarb himself had contacted an Indonesian company about building a teakwood greenhouse. Nonetheless, at trial he had no supporting evidence and could provide few details about the plans. He testified that parcel 3 was the only possible site for a greenhouse on the Hirshfields' property. However, he also admitted that before learning that the Hirshfields owned parcels 1 and 3, he had originally planned to build an aluminum greenhouse costing $7,500.

In addition to the evidence discussed above, the court viewed the disputed parcels with the consent of the parties. Apart from stating that it had viewed the disputed parcels, the court's observations were not reported and are not part of the record.

On November 23, 1999, applying the relative hardship doctrine of Christensen, supra, 114 Cal.App.2d 554, 250 P.2d 660, the court entered a statement of decision in favor of the Schwartzes. The court credited the evidence showing that they innocently believed the chain link fence marked their property line. Concerning the Hirshfields' evidence—in particular, Himmelfarb's testimony—about the need to build a greenhouse and a circular driveway, the court found it insubstantial. Although the Schwartzes produced no evidence of the cost of relocating their various motors and utility lines, the court inferred from the nature of those items that the cost would be significant. In contrast, parcels 1 and 3 had limited value to the Hirshfields unless they removed a row of shrubs which they needed for privacy. Further, parcel 3 amounted to less than one percent of the Hirshfields' property. While there were significant equities on both sides, the court believed that the balance tipped in the Schwartzes' favor. The court therefore determined that the Hirshfields had failed to carry their burden of proof for injunctive relief on the quiet title, trespass and declaratory relief claims.

In addition to denying the injunction, the court protected the Schwartzes' use of parcels 1 and 3 by granting them an interest in those parcels. Labeling that interest "an easement," the court ruled that the easement would terminate when the Schwartzes either transferred the property or no longer lived there. Further, the Schwartzes could not add to the encroachments on those parcels. The court awarded the Hirshfields an unrestricted easement in parcel 2. Finally as monetary damages, the court ordered the Schwartzes to pay the Hirshfields the fair market value of parcels 1 and 3, less the fair market value of parcel 2, as determined by an appraiser. The appraiser valued parcel 1 at $425, parcel 2 at $600, and parcel 3 at $23,000. Based on these appraisals, the damages were $22,825. The court entered judgment to that effect.

On appeal, the Hirshfields contend that in denying their claim for injunctive relief, the court applied the wrong standard under the relative hardship doctrine. Further, they maintain that there was no evidence of the costs the Hirshfields would bear from relocating their encroachments. Finally, they believe that the court erred in awarding the Schwartzes a prescriptive easement for the exclusive use of parcels...

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1 cases
  • Rancho Carlton Props. v. Radnor
    • United States
    • California Court of Appeals Court of Appeals
    • May 23, 2022
    ...rather than granting injunctive relief compelling the trespasser to remove the encroachment. (Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 758-759 (Hirshfield); Shoen v. Zacarias (2015) 237 Cal.App.4th 16, 19 (Shoen); Ranch at the Falls LLC v. O'Neal (2019) 38 Cal.App.5th 155, 183-184 ......
1 books & journal articles
  • Top Ten Real Property Cases of 2022
    • United States
    • California Lawyers Association California Real Property Journal (CLA) No. 41-1, March 2023
    • Invalid date
    ...such that "doubtful cases should be decided in favor of the [property owner with legal title]").134. Hirschfeld v. Schwartz (2001) 91 Cal.App.4th 749, 769.135. Romero v. Shih, supra, 78 Cal.App.5th at p. 359.136. Christensen v. Tucker (1952) 114 Cal.App.2d 554, 563.137. J & A Mash & Barrel,......

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